0720080056
01-08-2009
Varinder K. Sharma, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Varinder K. Sharma,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0720080056
Hearing No. 140200500310X
Agency No. 1C284000805
DECISION
Following its August 22, 2008 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) award of compensatory damages,
pursuant to a finding of discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. Specifically, the agency accepted the AJ's finding that complainant
was discriminated against due to his national origin. However, the agency
requests that the Commission affirm its rejection of the relief ordered
by the AJ as regards compensatory damages. As such, the agency rejected
that portion of the AJ's decision which awarded complainant $50,000 in
compensatory damages. Complainant has also filed a cross appeal dated
November 18, 2008, on the issue of back pay. For the following reasons
the Commission modifies the agency's final order.
ISSUE PRESENTED
Whether complainant was properly awarded $50,000 in compensatory damages
and back pay following a finding that complainant was discriminated
against because of his national origin (Indian) when, in December 2004,
he was not selected for the position of Manager, Maintenance, at the
Processing and Distribution Center, in Fayetteville, North Carolina.
BACKGROUND
The record indicates that complainant, a Manager, Maintenance, Level
EAS-21 at the agency's Processing and Distribution Center in Raleigh,
North Carolina, filed a formal EEO complaint with the agency on March
11, 2005, alleging that the agency had discriminated against him on
the basis of national origin (Indian) when he was not selected for the
position of Manager, Maintenance. At the conclusion of the investigation,
complainant was provided with a copy of the investigative report and
requested a hearing before an AJ. Following a hearing, on April 10,
2008, the AJ issued a finding of discrimination based on national origin
for complainant's non-selection for the position at issue herein.
Further, the AJ awarded complainant $50,000 in compensatory damages.
In addition, the AJ awarded complainant costs and attorney's fees in
the amount of $16,254.00. The agency issued a final order declining
to fully implement the AJ's decision. On appeal, the agency does not
contest the AJ's finding of national origin discrimination. Rather, the
agency argues that the AJ's award of compensatory damages was excessive
in light of the circumstances of the case.
Pursuant to C.F.R � 1614.405 (a), all post hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to
de novo standard of review, whether or not a hearing was held, as are
findings of fact issued without a hearing. See 29 C.F.R. � 1614.405(a).
On appeal, the agency has not contested the finding of national
origin discrimination in connection with complainant's non-selection.
Therefore, the Commission limits its review in the case to the AJ's
award of compensatory damages.
ANALYSIS AND FINDINGS
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S. C. �1981a(b)(3). For an employer with more than 500 employees,
such as the agency, the limit of liability for future pecuniary and
non-pecuniary damages is $300,000. Id.
The particulars of what relief may be awarded, and what proof is necessary
to obtain that relief, are set forth in detail in EEOC Notice No. N
915.002, Compensatory and Punitive Damages Available Under Section 102
of the Civil Rights Act of 1991 (July 14, 1992) (Guidance). Briefly
stated, the complainant must submit evidence to show that the agency's
discriminatory conduct directly or proximately caused the losses for
which damages are sought. Id. at 11-12, 14; Rivera v. Dept. of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded should
reflect the extent to which the agency's discriminatory action directly
or proximately caused harm to the complainant and the extent to which
other factors may have played a part. Guidance at 11-12. The amount
of non-pecuniary damages should also reflect the nature and severity of
the harm to the complainant, and the duration or expected duration of
the harm. Id. at 14.
In Carle v. Dept. of the Navy, the Commission explained that "objective
evidence" of non-pecuniary damages could include a statement by the
complainant explaining how he or she was affected by the discrimination.
EEOC Appeal No. 01922369 (January 5, 1993). Statements from others,
including family members, friends, and health care providers could
address the outward manifestations of the impact of the discrimination on
the complainant. Id. The complainant could also submit documentation
of medical or psychiatric treatment related to the effects of the
discrimination. Id. Non-pecuniary damages must be limited to the sums
necessary to compensate the injured party for the actual harm and should
take into account the severity of the harm and the length of the time
the injured party has suffered from the harm. Carpenter v. Department
of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995).
Pursuant to the agency's appeal, the Commission must review whether or
not the AJ's award of non-pecuniary damages was appropriate. The AJ
determined that complainant was entitled to $50,000 based on the agency's
discriminatory non-selection in December 2004. The Commission notes
that complainant indicated that as a result of the agency's conduct, he
suffered symptoms of high anxiety, nightmares relating to the agency's
non-selection, and experienced feelings of hopelessness and humiliation,
including testimony at the hearing that the non-selection caused him
to suffer an "emotional imbalance." While there is very little medical
documentation to establish that complainant suffered significant emotional
harm, the record does also contain statements from complainant's wife and
son testifying to the fact that they observed that complainant suffered
emotionally and that he was despondent, and irritable. Based on a
through review of the record, the Commission finds substantial evidence
to support the AJ's finding that complainant has established a nexus
between the alleged harm and discrimination, and therefore is entitled
to an award of non-pecuniary damages.
The AJ awarded $50,000 in compensatory damages to complainant based on
the agency's conduct and the harm suffered by complainant. While the AJ
did not elaborate in his decision, the Commission finds that in applying
prior case law, the AJ's $50,000 award falls within the upper range of
cases with similar evidence. Upon review, the Commission finds that
the AJ's award is supported by the evidence and consistent with previous
Commission decisions cited in the record.
The record further indicates that complainant filed a cross appeal
in this matter regarding the AJ's award of back pay in this matter.
The AJ ordered the agency to "determine the appropriate amount of back
pay with interest and other benefits due complainant for the period from
2003 non-selection, pursuant to 29 C.F.R. � 1614.501, and tender that
amount to complainant." In his cross appeal, complainant argues that in
its final order in this matter, the agency states that it "will implement
that portion of the decision finding national origin discrimination but
will not implement and will appeal the award of compensatory damages."
In its appeal to the Commission, the agency only address its contention
that complainant is not entitled to an award of $50,000 in compensatory
damages. We find therefore, that the agency must comply with its
own final order implementing the decision of the AJ in this matter.
The agency must calculate the amount of back pay complainant is entitled
to as a result of subjecting him to national origin discrimination.
The purpose of a back pay award is to restore to complainant to the
income he would have otherwise earned but for the discrimination. See
Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. Unites
States Postal Service, EEOC Petition No. 04900010 (November 29, 1990).
The person who has been discriminated against must receive a sum of money
equal to what would have been earned by that person in the employment
lost through discrimination (gross back pay) less what was actually
earned from other employment during the period, after normal expenses
incurred in seeking and holding the interim employment have been deducted
(net interim earnings). The difference between gross back pay and net
interim earnings is net back pay due. Net back pay accrues from the date
of discrimination, except where the statute limits recovery, until the
discrimination against the individual has been remedied. Gross back pay
should include all forms of compensation and must reflect fluctuations
in working time, overtime rates, penalty overtime, Sunday premium and
night work, changing rate of pay, transfers, promotions, and privileges
of employment to which the petitioner would have been entitled but for
the discrimination. See Ulloa v. United States Postal Service, EEOC
Petition No. 04A30025 (August 3, 2004) (citing Allen v. Department of
the Air Force, EEOC Petition No. 04940006 (May 31, 1996); Perez v. United
States Postal Service, EEOC Petition No. 04A40041 (March 3, 2005).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission reverses
the agency's final order and remands the matter to the agency to take
corrective action in accordance with this decision and the Order below.
ORDER (D0403)
To the extent it has not already done so, the agency is ordered to take
the following remedial action:
1. Within 30 days of the date this decision becomes final, the agency
shall appoint complainant to the position of Manager, Maintenance, EAS-22,
Fayetteville, North Carolina, or a substantially equivalent position,
retroactive to date of initial non-selection.
2. Within 60 days of the date this decision becomes final, the agency
shall determine the appropriate amount of back pay with interest and
other benefits due complainant for the period from the 2003 non-selection
through his instatement to the position in question, pursuant to C.F.R
� 1614.501, and tender that amount to complainant. Complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within the referenced 60-day time frame. The
complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed
with the Compliance Officer, at the address referenced in the statement
entitled "Implementation of the Commission's Decision.
3. Within 60 days of the date this decision becomes final, the agency
shall pay complainant $254.00 for traveling costs.
4. Within 60 days of the date this decision becomes final, the agency
shall pay complainant non-pecuniary, compensatory damages in the amount
of $50,000.00.
5. Within 60 days of the date this decision becomes final, the agency
shall pay the complainant $16,000.00 for attorney fees and costs.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fayetteville, North Carolina
and Raleigh, North Carolina facilities copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 8, 2009
_________________
Date
2
0720080056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0720080056